Shah v. Holder

FILED
CORRECTED 4/18/2011 SEP 23 2010
MOLLY C. DWYER, CLERK
NOT FOR PUBLICATION U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAHIRA BIBI SHAH, Nos. 08-70520
09-73129
Petitioner,
Agency No. A070-344-114
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
In these consolidated petitions for review, Tahira Bibi Shah, a native and
citizen of Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”)
order denying her motion to reopen to apply for adjustment of status, as well as the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
BIA’s prior order dismissing her appeal from an immigration judge’s (“IJ”)
decision denying her application for cancellation of removal. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). In
08-70520, we dismiss the petition for review, and in 09-73129, we deny in part and
dismiss in part the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that
Shah failed to show exceptional and extremely unusual hardship to a qualifying
relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We
also lack jurisdiction to review Shah’s contention that the IJ abused her discretion
and violated due process by denying a continuance because she failed to exhaust
these contentions before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004).
The BIA did not abuse its discretion in denying Shah’s motion to reopen as
untimely because it was filed over 90 days after the final administrative order, and
she did not establish that an exception to the filing deadline applies. See 8 C.F.R. §
1003.2(c)(2)-(3).
We do not consider Shah’s contention that the BIA should have reopened
2 08-70520
proceedings under its sua sponte authority because she failed to make this request
before the agency. See Barron, 358 F.3d at 678.
In No. 08-70520: PETITION FOR REVIEW DISMISSED.
In No. 09-73129: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
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